In 2013, the Kountze High School cheerleaders won a lawsuit that said they could hold up banners with Bible verses on them to support the football team, even though critics argued that they were representing the school and therefore couldn’t promote religion while on the field:
In a strange quirk, the cheerleaders were actually fighting their school district in court — not some atheist group — because then-Superintendent Kevin Weldon had told them to stop with the banners. So when Judge Steve Thomas ruled in favor of the cheerleaders, he was simultaneously telling District officials they couldn’t stop the girls from being all preachy on the football field. Thomas wrote in his decision:
The evidence in this case confirms that religious messages expressed on run-through banners have not created, and will not create, an establishment of religion in the Kountze community.
Neither the Establishment Clause nor any other law prohibits the cheerleaders from using religious-themed banners at school sporting events. Neither the Establishment Clause nor any other law requires Kountze I.S.D. to prohibit the inclusion of religious-themed banners at school sporting events.
There were two big problems with this ruling.
First, it just made no sense at all. How could any reasonable person see cheerleaders in school uniforms hoisting banners with Bible verses on them… and not see a link between the school district and Christianity?
Also, the decision wasn’t very clear about what was allowed. Judge Thomas wrote that no law “requires Kountze I.S.D. to prohibit the inclusion of religious-themed banners.” In other words, the District didn’t have to put a stop to the students’ banners. But suppose the cheerleaders held up their Bible banners again the following year and a local parent got upset over it. Could that parent sue the District for promoting religion? And would the District have to pay up when they lost? The District didn’t know the answer to that question.
Because of that lack of clarity in Thomas’ decision, the lawyers for the District filed an appeal — in essence, continuing a battle against their own students — just to clarify whether or not the banners were okay:
“We think the attorneys on the other side are reading into the court’s decision rights that just aren’t there,” said Attorney Tom Brandt of Fanning Harper Martinson Brandt & Kutchin in Dallas, who represents Kountze ISD, in a statement. “The school district believes that it is in everyone’s best interests to seek clarification rather than subject the district to additional costly litigation in the future. The school board’s decision to appeal was not made lightly, particularly given the fact that the district court’s order actually granted some of the relief the school district sought, namely, that Kountze ISD is not required to prohibit religious-themed banners at school sporting events.”
It was actually a pretty savvy move on the District’s part. Even if they “lost” the appeal — and the higher court said the cheerleaders could continue hoisting their religious banners — it would keep the District off the hook in the face of any future lawsuit. (You can’t sue us! We were just doing what the judge told us to do!)
While that was all happening, the District changed its policy to allow such banners:
In other words, the District passed its own resolution saying they didn’t have to ban religious banners. Because that policy put the District and cheerleaders on the same side, the legal fight was essentially moot. And the whole case was soon dismissed:
On April 8, 2013, the Kountze ISD Board of Trustees adopted Resolution and Order No. 3, which states, in part, that school personnel are not required to prohibit messages on school banners, including run-through banners that display fleeting expressions of community sentiment solely because the source or origin of such messages is religious.
This is an interesting turn of events for Kountze ISD thanks to proactive legal strategy on the part of the district. Rather than decide the constitutionality of the district’s actions, the court found that there was no longer a controversy to decide.
But that didn’t end the problem. Now the District and the cheerleaders were all saying the religious banners were okay. That’s still unconstitutional! Just because it’s a “fleeting [expression] of community sentiment” doesn’t make it legal.
The cheerleaders (now siding with the District) weren’t done fighting, though:
Although it was no longer a contested issue, the trial court later ruled that the banners did not violate the First Amendment. Because the trial court did not dismiss the cheerleaders’ claim for attorney’s fees, however, the school district appealed.
In May, 2014, the Court of Appeals of Texas dismissed all appeals related to the substantive issues of the case. Attorneys for the cheerleaders appealed, however, and the matter is now before the Texas Supreme Court.
In short, this case wasn’t over, and no ruling was ever made on the actual substantive issues. That’s what the Texas Supreme Court had to decide: Did the District owe any money to the cheerleaders’ representation? They were not deciding whether anything illegal took place.
It’s been a while since we last heard about this case. Yesterday, however, the Texas Supreme Court ruled in favor of the cheerleaders. Kind of.
Without saying whether the biblical signs were permissible or not — since they weren’t deciding that issue — they said the cheerleaders had every right to demand money from the District. After all, if the District didn’t have to pay up, after telling the cheerleaders they could have religious signs, what’s stopping them from changing the policy the moment the lawsuit ended?
… the District’s voluntary abandonment here provides no assurance that the District will not prohibit the cheerleaders from displaying banners with religious signs or messages at school-sponsored events in the future.
Accordingly,we grant the cheerleaders’ petition for review and without hearing oral argument, TEX. R. APP. P. 59.1, reverse the court of appeals’ judgment and remand the case to that court for further proceedings.
Conservatives are claiming this is a victory for the cheerleaders. That may be technically true, but the Court did not say they were allowed to hoist the Bible banners. It’ll take another lawsuit to decide that.
The Freedom From Religion Foundation made sure to reiterate that fact in a news release yesterday:
In response to the ruling, FFRF Staff Attorney Patrick Elliott said, “It is disappointing that Liberty Institute continues to waste the resources of the school system, and the courts, to resolve a matter that is no longer a live issue between these parties. Ultimately, the school district is not in a position to properly argue the limits of religious run-through banners under the First Amendment.”
If a current student or teacher at the school sought to challenge the banners under the Establishment Clause, they, along with FFRF, could still file a separate legal challenge, offered FFRF Co-President Annie Laurie Gaylor. She called the biblical banners “so patently inappropriate at a public school that should welcome and include everyone, including nonreligious and nonChristian students and fans.”
(Large portions of this article were published earlier. Thanks to Brian for the link)